Overstay on the Visitor Visa Waiver Program

[Frustrated2NoEnd 0]

First time posting so please forgive me if this doesn't end up under the right forum.

Brief synopsis: Came for a visit to see my Sweetie with my kids. When it was getting close to the time we had to go back, we hated the thought of being apart and knew we wanted to get married so we started calling around to find out what the process was for us to be able to get married and come on a Fiance Visa. Called a lawyer and was told over the phone that we could stay - we would be nuts to leave since we were already in the country and that there are new family reunification legislation and the new K visas. The lawyer told us to get married right away. This information on staying was confirmed by a call to USCIS. We were all so happy!! We got married the following Friday.

Since we abandoned everything back home, it took a while to wrap things up and get some of the documents that we would need. As a result, we didn't get in to consult with a lawyer (the first one we talked to was changing practice areas and going to work for a Company as their in-house Consultant) until November when we were told we got married too early... 2 days too early! Had we gotten married after 30 days from the date of landing, we would have had a better chance had we been married on the Monday instead of the Friday. As a result, our marriage will automatically be deemed Marriage Fraud (looking at jail time, $250,000 fine and a lifetime ban)!!!

We're sick of getting the run around from the lawyer (everytime we call to go in and hire her and start the process of filing the Adjustment of Status and Temp Work Permit, she tells us we need another document before we can make the appointment) not to mention that I get nervous now when I have to correct the lawyers on changes to legislation so we've decided to do it on our own.

Here are some of our first questions:

I-94 Since we were only coming for 3 weeks, I didn't apply for a Visitor Visa, we didn't get an I-94 and our passports weren't stamped by officials at the airport. What do we put on the forms?

From our research, there is a difference between a "Co-Sponsor" and a "Joint Sponsor". We have a "Joint Sponsor". My husband has 2 children who live with their mother. If our Joint Sponser is sponsoring the 3 of us (myself and 2 children), does the Joint Sponser have to earn enough for 7 people (my husband, his 2 kids that live outside the home and he doesn't claim on his tax return, myself and 2 kids as well as the Joint Sponsor themselves (there is no one else in the Joint Sponsor's household))?

On the I-864, what line do you use from the tax return... 22. Gross Earnings or 37. Adjusted Gross Earnings?

Will I need a copy of the custody papers for my kids and if so, at what point will they be required?

Any help and reference points (i.e. website names or links so that we can research - please, I don't mean to offend, just paranoid now!) would be greatly appreciated.

[desert_fox 32]

I wouldn't worry too much about the 30 day thing. They think that if you got married within the firtst 30 days, that this was your original intent when you entered the US. It's up to you to convinc them otherwise should the issue arise.

Secondly, what happened to your I-94's that the flight attendents passed out on the airline before you arrived. Didn't you fill them out and present them to immigration when you arrived?? They are required when you enter via the VWP.

You will require permission of your childrens father to emigrate to the US.

See an EXPERIENCED immigration attorney...lif only for an hour to get answers to all your questions....If your husband can't support you and your kids and his kids...I w'ont even talk about the problems you will have as a married couple, but the possible immigration problems..;.I think the co-sponser will have to show enough for his immediate family + six more, but I'm not sure in total.

Do NOT leave the US without a green card, as you will not be getting back in. I'm not even sure tht I would leave with an AP document under the circumstances. I hope you get along with the ex as he could insist that his kids be returned.

[Boiler 46,108]

Your specific questions are dealt with in the Guides.

The 2 big issues you have are:

Showing non immigrant intent whne you entered there is no magical number of days, but entering as a visitor with children and marying aew weeks later sounds odd.

Chide custody, did that allow you to take the children and moe without the fathers permission? In the US it woud be difficult to ove State, never mind country.

You need a lawyer, for the above, find a decent one. Lots out there, no shortage in the US.

[bakofoil 27]

If you entered the US on the VWP you will have received a green form (I-94) on the flight which is handed in to immigration who retain the top part and tear the bottom part off and staple into your passport.

If you had no intent to marry and remain in the US when you arrived and you can provide information of having ties back home at that time then you can file the I-130 from within the US and adjust status. It is entirely possible that you may not even be asked about your intent if interviewed, but you should be prepared to answer that question fully and honestly.

There is some information about filing the I-130 and adjusting status here and also on the VJ guides.

I think Boiler pretty much defined what your concerns should be. If you are able to prove no intent and have permission to remove your children permanently from Canada then you should be fine.

[SilentJester 0]

Just a note on your worry of the overstay....don't really think you have to worry about an "overstay". Canadians can enter the USA with no visa to visit, while it is technically a VWP, it does not follow the same guidelines as a normal VWP entrance. Unless otherwise instructed at the border by the CBP officer, a Canadian is permitted to stay in the US for up to 6 months just like a B2 Visa holder would be. Having no I-94 is normal for many Canadians.

As for the I-864...

Your household size includes yourself and the following individuals, no matter where they live: any spouse, any dependent children under the age of 21, any other dependents listed on your most recent Federal income tax return, all persons being sponsored in this affidavit of support, and any immigrants previously sponsored with a Form I-864 or Form I-864 EZ affidavit of support whom you are still obligated to support

http://www.uscis.gov/files/form/I-864.pdf

So basically if he claims his children as dependents on his tax form he will need to account for them on the I-864, at least that's how I'm understanding it...someone please correct me if I'm understanding that wrong. How I understand it, it would be himself + you + your kids.. so 4 since he does not claim his children as dependents and they do not live with him. Your husband must fill out an I-864 as well, the petitioner is required to fill one out even if they have a co-sponsor.

Your co-sponsor, if they have no dependents living in their household, would then need to have an income level 125% above the poverty line for 4 as well: Him/Herself, You, and Your children. If your co-sponsor claims your husband as a dependent then that would mean 5.

http://www.uscis.gov/files/form/I-864P.pdf is the 2007 guideline numbers, they are still in effect until spring of this year. Someone please correct me if I'm wrong on the I-864, it's been so long since I've had to do it.

[desert_fox 32]

Ha...I didnt realize she was Canadian....you do not receive an I-94 as a Canadian. Just state that you entered as a Canadian on yur paperwork.

[bakofoil 27]

Ha...I didnt realize she was Canadian....you do not receive an I-94 as a Canadian. Just state that you entered as a Canadian on yur paperwork.

I didn't realise the Canadians used the VWP and didn't get the I-94

[Frustrated2NoEnd 0]

I wouldn't worry too much about the 30 day thing. They think that if you got married within the firtst 30 days, that this was your original intent when you entered the US. It's up to you to convinc them otherwise should the issue arise.

Secondly, what happened to your I-94's that the flight attendents passed out on the airline before you arrived. Didn't you fill them out and present them to immigration when you arrived?? They are required when you enter via the VWP.

You will require permission of your childrens father to emigrate to the US.

See an EXPERIENCED immigration attorney...lif only for an hour to get answers to all your questions....If your husband can't support you and your kids and his kids...I w'ont even talk about the problems you will have as a married couple, but the possible immigration problems..;.I think the co-sponser will have to show enough for his immediate family + six more, but I'm not sure in total.

Do NOT leave the US without a green card, as you will not be getting back in. I'm not even sure tht I would leave with an AP document under the circumstances. I hope you get along with the ex as he could insist that his kids be returned.

Thank you for taking the time to respond desert_fox. I understand that they do claim that it was our original intent having married within the first 30 days but we do have the itinirary showing that we were scheduled to go back - basically we lost that money. Also, I have my pink slip from work showing that I resigned after the fact after having worked there for 14 years.

Whenever I have flown, I have never received an I-94. The only paperwork that I had filled out was for Customs (Duty) with which, I never had any paper or slip returned.

The children's father does not support them and does not have frequent contact with them.... his choice, not mine. We are also in the process of obtaining "legal" custody as he would not co-operate with me on a mediator while we were there due to the fact that child support is mandatory. Hopefully, everything will work out well and a visitation schedule can finally be arranged.

From our research (my mother-in-law has been a God send!), we understand that there is a difference between a "Co-Sponsor" and a "Joint Sponsor". A "Co-Sponsor" is a relative and resides in the same home and the co-mingling of earnings/assets is permitted. A "Joint Sponsor" can be anyone and does not need to reside in the home. This leaves us wondering... WHY does the Joint Sponsor need to qualify for others outside the home when they are specifically stating that they are sponsoring only those individuals named on the form? In the event that something happens to the Petitioner and he/she can't support the family, the Joint Sponsor is responsible only for those that aren't citizens and that are sponsored.

My husband can support us financially... things are tight but we're managing... but honestly.... how many people make 125% above the poverty line without 2 incomes coming in? I certainly understand the reasoning behind the rule and have no intention of coming to the US to end up in the "system" as I have always worked I just feel for those people who are making very little.

Again, thank you so much for your insight. Any and all information is always truly appreciated.

[diadromous mermaid 36]

A "Co-Sponsor" is a relative and resides in the same home and the co-mingling of earnings/assets is permitted.

The correct terminology Household Member, and a Contract between "Household Member" means their income can be combined with the primary sponsor's income to meet the requirement. (USC petitioner).

[desert_fox 32]

Ha...I didnt realize she was Canadian....you do not receive an I-94 as a Canadian. Just state that you entered as a Canadian on yur paperwork.

I didn't realise the Canadians used the VWP and didn't get the I-94

Its not the VWP...it is a separate agreement between the US and Canada....visa free, and stay for up to 6 months......until recently no passport required.

[Boiler 46,108]

The children's father does not support them and does not have frequent contact with them.... his choice, not mine. We are also in the process of obtaining "legal" custody as he would not co-operate with me on a mediator while we were there due to the fact that child support is mandatory. Hopefully, everything will work out well and a visitation schedule can finally be arranged.

Big red flag, this strikes me as being a potential major issue. See Hague Convention.

From our research (my mother-in-law has been a God send!), we understand that there is a difference between a "Co-Sponsor" and a "Joint Sponsor". A "Co-Sponsor" is a relative and resides in the same home and the co-mingling of earnings/assets is permitted. A "Joint Sponsor" can be anyone and does not need to reside in the home. This leaves us wondering... WHY does the Joint Sponsor need to qualify for others outside the home when they are specifically stating that they are sponsoring only those individuals named on the form? In the event that something happens to the Petitioner and he/she can't support the family, the Joint Sponsor is responsible only for those that aren't citizens and that are sponsored.

Re read the I-864, no such thing as a joint sponsor, your Husband is the Sponsor. He may nneed a co sponsor, USC or LPR resident in US.

My husband can support us financially... things are tight but we're managing... but honestly.... how many people make 125% above the poverty line without 2 incomes coming in? I certainly understand the reasoning behind the rule and have no intention of coming to the US to end up in the "system" as I have always worked I just feel for those people who are making very little.

125% is very little. You can do it on minimum wage.

[diadromous mermaid 36]

Re read the I-864, no such thing as a joint sponsor, your Husband is the Sponsor. He may nneed a co sponsor, USC or LPR resident in US.

Joint sponsor is the correct term, not co-sponsor.

What Is a Joint Sponsor?

http://www.uscis.gov/files/form/I-864.pdf

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

[Frustrated2NoEnd 0]

Ha...I didnt realize she was Canadian....you do not receive an I-94 as a Canadian. Just state that you entered as a Canadian on yur paperwork.

I didn't realise the Canadians used the VWP and didn't get the I-94

Yes we do and no... I have NEVER gotten an I-94, whether driving across or flying. I'm not sure whether or not that will change with the new restrictions that are coming into play.

Thanks for your comment babblesgirl. Good luck to you and yours!

[Boiler 46,108]

Re read the I-864, no such thing as a joint sponsor, your Husband is the Sponsor. He may nneed a co sponsor, USC or LPR resident in US.

Joint sponsor is the correct term, not co-sponsor.

What Is a Joint Sponsor?

http://www.uscis.gov/files/form/I-864.pdf

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

Oops, wrong way around, senior mement.

But the principal remains the smae.

[Frustrated2NoEnd 0]

Re read the I-864, no such thing as a joint sponsor, your Husband is the Sponsor. He may nneed a co sponsor, USC or LPR resident in US.

Joint sponsor is the correct term, not co-sponsor.

What Is a Joint Sponsor?

http://www.uscis.gov/files/form/I-864.pdf

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

Thanks for the head's up Irene... I'm going to go back over my research and double-check.

Re read the I-864, no such thing as a joint sponsor, your Husband is the Sponsor. He may nneed a co sponsor, USC or LPR resident in US.

Joint sponsor is the correct term, not co-sponsor.

What Is a Joint Sponsor?

http://www.uscis.gov/files/form/I-864.pdf

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

Oops, wrong way around, senior mement.

But the principal remains the smae.

lol... no worries... my head's spinning so much with all of this reading, I think I'm getting "Old Tymers" myself!